Teskey: The Appearance of Justice?
On June 7, 2007, the Supreme Court of Canada (“SCC”) rendered a rather puzzling decision in R v Teskey,  2 SCR 267, a case involving a trial judge’s eleven month delay in delivering written reasons for finding an accused guilty. The SCC decision, which was largely concerned with the question of the appearance of partiality, resulted in the overturning of the conviction of Leo Matthew Teskey, an Alberta man found guilty of brutally beating Edmonton apartment manager Dougald Miller.
In 2000 Teskey was charged with aggravated assault, break and enter, and theft after the severe beating of Miller, an Edmonton apartment manager who had attempted to escort the vagrant Teskey from a building under his care. After a five-day trial, ending on October 19, 2001, the trial judge reserved his decision and adjourned the case to November 9, 2001, stating that he wished to order transcripts. On the scheduled return date, the trial judge opted to once again adjourn the matter for decision, owing to the complexity of the largely circumstantial and contradictory evidence. This was repeated again on November 20, December 11, December 21, and January 25, 2002. Mr. Teskey was finally convicted on February 22, 2002, at which time the trial judge gave only exceptionally brief oral reasons (stating merely that the Crown had met its burden of proof) and declared his intention to issue written reasons “within a short period of time.”
On March 22, 2002, before both sentencing and the judge’s issuance of written reasons, Teskey filed a Notice of Appeal on numerous grounds, including whether the number of adjournments required by the trial judge in making his decision was indicative of reasonable doubt. On January 29, 2003, nearly a full year after orally convicting Teskey, the trial judge issued his written reasons.
The Alberta Court of Appeal
On January 12, 2006, Leo Teskey’s appeal from conviction was heard before the Alberta Court of Appeal. The Court of Appeal considered the adequacy of the trial judge’s oral and written decisions. Applying the functional test set out by the SCC in R v Sheppard,  1 SCR 869 [Sheppard], the Alberta CA was unanimous in its finding that the trial judge’s oral reasons were incapable of enhancing meaningful appellate review of the correctness of his decision.
There was however significant division as to whether the Court of Appeal should give consideration to the trial judge’s belated written reasons. Here, two issues were at stake. First, whether the timing of the reasons gave rise to the reasonable apprehension that they were ex post facto crafted to respond to Teskey’s appeal. Second, whether the circumstances surrounding the delivery of the written reasons gave rise to an objective apprehension of unfairness.
In a 2-1 decision, the majority opted to dismiss the appeal, maintaining a deferential stance towards the trial judge’s actions. Hunt and Costigan J.J.A. held that, when viewed holistically, the trial judge’s written reasons did not appear to be “written simply to answer points raised in the notice of appeal” (para 36). Moreover, the Court of Appeal insisted upon the application of a “presumption of regularity,” whereby, absent proof to the contrary, a judge’s decision is presumed to be informed by the judicial traditions of integrity and impartiality:
At best, the evidence supporting an apprehension of unfairness is equivocal. The presumption of regularity therefore supports the first interpretation. Absent proof to the contrary, the trial judge should be presumed to have acted in accordance with principle, which precludes trial judges entering the appellate arena. The provision of written reasons was no more than the tardy performance of the trial judge’s declared intention to provide reasons in compliance with the obligation imposed by Sheppard (para 40).
In response to the majority, Berger, J.A. offered a strong dissent, stating that the appearance of fairness could not be maintained under the circumstances of the case. Specifically he held that the repeated delays created an appearance that the trial judge’s written reasons were largely divorced from his original decision and that “a reasonable person would perceive that the conclusions reached months earlier were not at that time supported by the reasons now proffered” (para 74).
In a 6-3 decision, the SCC ruled that while not precluded from announcing a verdict with “reasons to follow,” trial judges must always remain conscious of the effect that such delay may have on the overall appearance of justice. However, the majority held that, when under review, trial judges in such circumstances must be awarded a presumption of fairness and impartiality, such that the onus is placed on the appellant to present evidence to the contrary. Here the test is an objective one, which in effect asks whether a reasonable person would apprehend the written reasons as an after the fact justification of the verdict, rather than a simple articulation of judicial reasoning. In this particular case, the SCC majority determined that a reasonable person would indeed apprehend the trial judge’s written reasons delivered eleven months after his verdict as being divorced from the verdict that preceded it. In the words of Charron J.:
Reasons rendered long after a verdict, particularly where it is apparent that they were entirely crafted after the announcement of the verdict, may cause a reasonable person to apprehend that the trial judge may not have reviewed and considered the evidence with an open mind as he or she is duty-bound to do but, rather, that the judge has engaged in result-driven reasoning. In other words, having already announced the verdict, particularly a verdict of guilt, a question arises whether the post-decision review and analysis of the evidence was done, even subconsciously, with the view of defending the verdict rather than arriving at it (para 18).
More specifically, Charron J. was unequivocal regarding the appropriate role of the trial judge’s written reasons on appeal:
In the particular circumstances of this case, I conclude that a reasonable person would apprehend that the trial judge’s written reasons, delivered more than 11 months after the verdict was rendered, did not reflect the real basis for the convictions. Without this requisite link between the verdict and the reasoning that led to that verdict, the reasons provide no opportunity for meaningful appellate review of the correctness of the decision. Hence, the written reasons should not have been considered on appeal (para 2).
As for the minority, composed of Bastarache, Deschamps and Abella JJ., deferrence was paramount. For them, such delay simply would not lead a reasonable person to conclude that a judge had eschewed the fundamental traditions of integrity and impartiality. While inordinate delay is and should be the target of criticism, to outright ignore a judge’s reasons because of delay, they suggest, would present a dangerous precedent and a great deal of uncertainty regarding the question of “how long is too long?”
Perhaps what is most striking about the majority’s decision, however, is the manner in which it concludes. After focusing almost exclusively on the belatedness of the trial judge’s written reasons, Charron J. winds down by suggesting that the delay was only one factor of many that brought the SCC to its ultimate determination. Indeed, Charron J. feels fit to declare that she would have likely sided with Abella J. and the minority had it been otherwise:
With respect, Abella J.’s analysis also appears entirely focused on the timing of the reasons. If the only factor in this case were the delay in the post-verdict delivery of the reasons, I would take no issue with her conclusion.
Yet, as far as I can tell, the timing of the reasons was not merely one factor among many, but the very crux of the case. All this leaves me on side with Abella J., wondering what kind of precedent this case makes.